When a woman cannot have a baby due to infertility, for example she has no uterus or presents other genetic conditions that prevent pregnancy, the use of a surrogate to give birth may be considered. Surrogacy can also enable same sex couples to realise their dreams of parenthood.
Surrogacy involves a woman (birth mother) becoming pregnant and giving birth to a child for an intended parent or parents, (commissioning couple) through the assistance of in vitro fertilisation.
Surrogacy is a very lengthy and complex process that needs to comply with specific legislation. The stringent legal aspect of surrogacy is in place to look after the best interest of the child. If not handled correctly, surrogacy can provide a number of risks including disputes regarding parentage of the child.
An intended couple or person must find their own surrogate and legislation provides that it is illegal to advertise in any way. Note: Monash IVF are unable to assist in arrangement of a surrogate.
Who is eligible for Surrogacy?
Single persons, heterosexual couples and same sex couples who are not able to have their own children for medical or social reasons can enter into a surrogacy arrangement in order to start a family.
For an eligible woman to enter into an arrangement using a surrogate, a doctor must first have formed the opinion that the woman is:
- Unable to conceive; or
- If able to conceive-
- Is likely to be unable, on medical grounds, either to carry a pregnancy or to give birth, or
- Unlikely to survive a pregnancy or birth, or
- Is likely to conceive a child affected by a genetic condition or disorder, the cause of which is attributable to the woman, or
- Is likely to conceive a child who is unlikely to survive a pregnancy or birth, or
- Is likely to conceive a child whose health is likely to be significantly affected by a pregnancy or birth.
Who can enter into a Surrogacy Arrangement?
A surrogate (and her partner, if any) and the intended parent/s must be at least 25 years of age. Intended parent/s must be residents of the state in which the treatment takes place.
The surrogate will ideally be 25- 40 years of age and have no existing medical, obstetrical or psychological issues. She must have given birth to a live child, and preferably completed her family. She should have a healthy lifestyle, does not abuse drugs and alcohol, and be in a monogamous relationship.
Intended parent/s must be 25-53 years of age (treatment must be completed by the 53rd birthday of the youngest partner).
All surrogacy arrangements need to involve people known to each other and self recruited. Monash IVF cannot provide anonymous surrogates.
The guiding principles of surrogacy law state that all matters in relation to surrogacy be administered according to the principle that the well being and best interests of the child, born as a result of a surrogacy arrangement, are paramount.
Before a surrogacy arrangement is entered into, the intended parents and the surrogate and her partner, if any, must undergo counselling, by a Counsellor providing services on behalf of a registered IVF Clinic, discussing the social and psychological implications of entering into the arrangement.
The commissioning couple and the surrogate couple will also be required to undergo psychometric testing and psychological assessment by an independent psychologist. Monash IVF will provide a list of psychologists experienced in these type of assessments for surrogacy arrangements.
All parties must obtain independent legal advice before entering into a surrogacy arrangement.
Due to the complexity of surrogacy arrangements, multiple counselling sessions will be required for all parties. This is to ensure that all parties have clear expectations and boundaries about the arrangement they are about to enter into. It is up to the counsellor’s discretion to determine how many sessions will be required.
In Victoria, it will also be necessary to undergo National Police Checks and Child Protection Order Checks.
Legislation also states that a surrogate mother must not receive any material benefit or advantage as a result of a surrogacy arrangement. She can be reimbursed for prescribed costs actually incurred as a direct consequence of entering into the surrogacy arrangement.
It is important to remember that surrogacy arrangements are not enforceable.
Independent Patient Review Panel
For treatment in Victoria, the commissioning woman/couple must submit an application to the Victorian Patient Review Panel together with original or certified copies of current police checks and child protection order checks, reports from the IVF Clinic Counsellor, Independent Psychologist, the treating IVF clinician, Lawyer, and any other relevant treating health professional, for approval of their surrogacy arrangement. All parties to a surrogacy arrangement including egg or sperm donors must all be counselled about the implications of the surrogacy arrangement and included in any group consultations with the surrogate and intended/commissioning parents.